This is one Newsletter that really contains no news. You have heard more
about The Supreme Court's decision from the press and media than you
could digest. Still, this is one Newsletter that must be written. The
reason: The Supreme Court's decision re-defines the authority of the
federal government. And it turns logic inside out along the way. That
is more than news. It is a seismic event.
I have no strong feeling about the statute itself ("Patient Protection
and Affordable Care Act," not so fondly called by some "Obama
Care"). But I do feel strongly about how the Supreme Court saved
it from a premature death.
First, let's run through the scorecard. Five to four again. The decisive,
majority opinion was written by the Chief Justice, Justice Roberts. He
was joined by the so-called "liberal" contingent consisting
of Justices Ginsburg, Sotomayor, Breyer, and Kagan. Among that group Justice
Ginsburg wrote a long, separate, concurring opinion. The minority consisted
of the so-called "conservative" wing consisting of Justices
Scalia, Thomas, Alito, and Kennedy. (Justice Kennedy is often considered
a swing vote, so it may be unfair to label him either conservative or
liberal.) Justice Scalia wrote a long dissenting opinion challenging the
majority on several fronts.
As I see it, the majority opinion is the result of a judicial compromise.
The Chief Justice apparently agreed to uphold the Act, so long as he could
do so on some basis other than the Commerce Clause. (The Commerce Clause
in the Constitution authorizes the federal government to enact a wide
variety of laws which, in one way or another, regulate commerce occurring
among the states.) The liberal justices apparently went along with that
compromise. Still, Justice Ginsburg explained at length in her opinion
why she thought the Commerce Clause should be used. The Chief Justice
relied only upon the taxing power of Congress. More on that below.
In his dissent Justice Scalia agreed with the Chief Justice that the Commerce
Clause could not support the Act, but he went on to say that neither could
the taxing power of Congress. He had little difficulty pointing out the
inconsistencies in the other opinions.
Three things concern me: First, by prohibiting the Commerce Clause from
applying to "inactivity" as opposed to active participation
in commerce, the Chief Justice created an artificial distinction which,
in the future, may prevent the federal government from regulating things
that really need regulating on a universal basis. At the same time, by
ruling that Congress may impose a tax on an inactive person - a person
who decides to do nothing about joining a specific program - the Chief
Justice introduced the concept of taxing a taxpayer simply because the
taxpayer exists. Why not, I wonder, begin taxing a baby at birth?
The Chief Justice reasoned that not buying health insurance is a taxable
"condition" much like "earning income." No, not in
my experience. The energy it takes for me or anyone else to earn income
is huge in comparison with the energy it takes to decide not to buy something.
The Act imposes a "penalty" on persons who refuse to buy health
insurance. There is a statute called the "Anti-Injunction Act"
that prohibits anyone from going to court to stop the collection of a
tax. The Chief Justice decided that the "penalty" imposed by
the Act does not fall under the Anti-Injunction Act because it functions
as a penalty; yet, at the same time, the Chief Justice treated it is a
"tax" under the Constitution. The Act itself uses the word "penalty"
eighteen times. According to the Chief Justice, Congress wrote "penalty"
but really meant "tax." So now we have the same thing --- a
payment to IRS - that changes its identity depending upon the setting
in which it is placed. I call that breeding salamanders.
Second, the Chief Justice does not tell us where the taxing power of Congress
ends. How many things we choose not to do will become the subject of taxation
in the future? That worries me. That should worry every other citizen.
Third, restricting Congress' use of the Commerce Clause may prove short-sighted.
To that extent I have to agree with the opinion of Justice Ginsburg. Yet,
even she engages in some devious reasoning. In order to duck the criticism
that not buying health insurance is the opposite of "activity"
and therefore cannot be regulated under the Commerce Clause, Justice Ginsburg
shifted the focus from the purchase of insurance to the 'consumption
of healthcare.' She made the point, inescapably true, that at some
time before death every human being will require healthcare. By that logic
every human being will become "active" in the consumption of
healthcare in commerce at some time. She believes that Congress can regulate
the prospective "activity." This is slippery reasoning. It shifts
the focus from the decision about buying or not buying insurance to the
use of healthcare.
Justice Ginsburg opens up the concept of regulating activity in commerce
before it actually occurs. The Chief Justice opens up the concept of taxing
a person simply because the person exists. Either way, big brother grows
a longer arm with which to reach out and squeeze.